Decided
May, 1890.
Appeal
from Webster District Court.--HON. S. M. WEAVER, Judge.
FROM
the spring of 1884 to about December 10, 1886, the firm of
Eiker & King was engaged, in Ft. Dodge, Iowa, as furniture
dealers. The plaintiff was the father of one member of the
firm, and father-in-law of the other. On the tenth day of
March, 1884, the firm gave to the plaintiff its note for
three thousand dollars; and on the eighteenth day of June
thereafter it gave its note for one thousand dollars. On the
eighth day of December, 1886, the firm executed to the
plaintiff the following instrument, which, because of its
importance in the case, is set out in full.
"Know
all men by these presents, that we, S. H. Eiker and E. E
King, and Eiker & King, a copartnership comprised of the
above-named S. H. Eiker and E. E. King, have sold, and do
hereby convey, unto Geo. W. King, of the city of Fort Dodge
Webster county, Iowa, all the following described property
All the goods, wares and merchandise, of every kind and
description constituting and included in the stock of
furniture and business heretofore carried on by the said
parties of the first part, under the firm name and style of
Eiker & King, in Doud's building in Market street, in
Fort Dodge, Iowa,--the intent being to include and convey by
this instrument all mouldings, furniture, upholstered and
undertaker's goods and mattresses, bed furniture
curtains, window hangings and fixtures, and each and every
article, item and thing included in said stock, and used and
kept for sale in carrying on said business; also, the safe,
office and store furniture, delivery wagon, and horses,
hearses and fixtures and furniture belonging thereto; also
all tools, material, stock, timber, paint-shop furniture and
machinery, and each and every article used and kept on said
premises and belonging to said business, and used in carrying
on the same; also all book-accounts and books of account due
said firm of Eiker & King. And we hereby authorize him, the
said Geo. W. King, to collect and receipt for all sums due,
or to become due, on said accounts and books, in our names or
his own, as he may prefer. And we hereby authorize him, the
said George W. King, to take immediate, actual possession of
said property, and to assume immediate, actual control
thereof, and to proceed to sell the same, and the whole or
any part thereof, at private or public sale, at wholesale or
retail, with or without notice, as he may see fit, and as in
his judgment may seem best, and out of the money arising from
said sale, and out of the proceeds of said property, and the
sums collected on said accounts, to pay the parties and
persons hereinafter named, said sums to be paid in the order
named: First. All taxes on said property, and all rent for
the premises where the same is kept. Second. All insurance
thereon. Third All expenses of sale, including desk hire, and
other assistance and help that may be required. Fourth. All
sums due him on certain promissory notes made by Eiker & King
to the said Geo. W. King,--one note being for three thousand
dollars, dated March 10, 1884, the other for one thousand
dollars, dated June 18, 1884; each of said notes being due on
demand and bearing interest at the rate of eight per cent.
Fifth. To pay to the Fort Dodge National Bank, of Fort Dodge,
Iowa, all moneys due, or to become due, on notes held by said
bank against said Eiker & King; said notes now aggregating
about three thousand dollars. Sixth. All moneys arising from
said stock, goods, property or accounts, in excess of the sum
necessary to pay the claims and items hereinbefore set forth,
shall be divided among, and paid over to, the other creditors
of said firm of Eiker & King in proportion of the amount of
their respective claims. It is intended to be included in the
third item a reasonable compensation for any and all services
rendered by said Geo. W. King personally in the premises, and
all expenses or costs incurred for counsel and attorneys'
fees, or costs of any description, in carrying out this
contract. This contract is made for a valuable consideration,
the receipt of which we do hereby acknowledge.
"S.
H. EIKER,
"E.
E. KING,
"EIKER & KING.
"By
S. H. EIKER."
The
property described in the above instrument was the entire
property of the firm, and was at once taken possession of by
the plaintiff. On the ninth day of December, 1886, the firm
executed to the plaintiff, to secure the notes held by
plaintiff, a chattel mortgage on the same property. On the
same day, December 9, the firm also executed to the defendant
bank a chattel mortgage on the property to secure its claim;
the mortgage to the bank, being junior to that of plaintiff.
December 10, the bank, through the agency of the defendant
sheriff, by virtue of an attachment, seized all the property
held by the plaintiff, and retains the same under legal
proceedings to enforce the payment of its claim. The
plaintiff brings this action, alleging the seizure of the
property by the bank to be wrongful, and asking to recover
the value thereof. The answer presents numerous defenses, and
among them that the conveyance of the property by virtue of
the instrument above set out was an assignment for the
benefit of creditors, with preferences, and that the mortgage
executed thereafter to the plaintiff is void. The district
court gave judgment for the defendants upon such issues, and
the plaintiff appeals.
AFFIRMED.
